Competency of witness - Next Generation Bar Exam

1. Under FRE 605, what is the status of testimony by the presiding judge?

   The judge may not testify as a witness, and no objection is needed to preserve the issue. The judge's role as neutral arbiter is incompatible with acting as a witness.

2. In a diversity case, a plaintiff seeks to testify about an oral deal with a decedent, and the state Dead Man's statute bars it. Which law governs competency?

   State law, under FRE 601. State competency rules apply where state law supplies the rule of decision.

3. Under FRE 604, what is required of an interpreter?

   Qualification and an oath or affirmation to make a true translation. Interpreters are subject to the rules on expert qualification.

4. What do state Dead Man's statutes typically provide?

   That an interested party may not testify about transactions with a decedent in a suit against the decedent's estate. Under FRE 601, such statutes apply in federal civil cases governed by state law.

5. What standard governs the competency of a child witness under the Federal Rules?

   The general presumption of competency, subject to the court's assessment of the child's capacity. There is no minimum age; the child must be able to perceive, remember, communicate, and understand the duty to tell the truth.

6. Under FRE 603, what must a witness do before testifying?

   Give an oath or affirmation to testify truthfully. The form may be adapted to the witness's beliefs, so long as it awakens the witness's conscience.

7. Under FRE 601, what is the general rule on witness competency?

   Every person is competent to be a witness unless the rules provide otherwise. In civil cases, state law governs competency regarding a claim or defense for which state law supplies the rule of decision.

8. What is the effect of a witness's lack of religious belief on competency?

   It has no effect, because the witness may affirm rather than swear an oath. Religious belief is not a condition of competency.

9. What is the effect of a witness's mental illness on competency under the Federal Rules?

   It does not make the witness incompetent; it bears on credibility for the jury. The court may exclude testimony only in extreme cases where the witness cannot communicate or understand the oath.

10. Who decides preliminary questions about a witness's competency?

    The court. Competency is a question of admissibility under Rule 104(a).

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